Title 49—Transportation--Volume 1
PART 1103—PRACTITIONERS
§ 1103.1   Register of practitioners.
The Board maintains a register containing the names of all non-attorneys entitled to practice before it. The register is maintained according to the individual non-attorney practitioner's name and not by corporate or firm name. Corporations and firms are not admitted or recognized as practitioners before the Board.
§ 1103.2   Attorneys-at-law—qualifications and requirements to practice before the Board.
Any person who is a member in good standing of the bar of the highest court of any State, Commonwealth, possession, territory, or the District of Columbia may represent persons before the Board.
§ 1103.3   Persons not attorneys-at-law—qualifications and requirements for practice before the Board.
(a) In general. Any citizen or resident of the United States, not an attorney-at-law, who files an application for admission to practice, accompanied by the payment of the fee prescribed by rule or order of the Board, and who successfully completes the practitioners' examination, and shows that applicant possesses the necessary legal and technical qualifications to enable applicant to render valuable service before the Board and that applicant is competent to advise and assist in the presentation of matters before the Board, may be permitted to practice before the Board.
(b) Qualifications standards. A non-attorney applicant for admission to practice must meet one of the following requirements:
(1) An applicant must have completed 2 years (60 semester hours or 90 quarter hours) of post secondary education and must possess technical knowledge, training or experience in the field of transportation which is regarded by the Board as the equivalent of 2 additional years of college education;
(2) An applicant must have worked in the field of transportation for at least 10 years;
(3) An applicant must have received a bachelor's degree with at least 12 semester hours or 18 quarter hours in transportation or business; or
(4) An applicant must have received a bachelor's degree and worked in the field of transportation for at least one year. An applicant's statement of college education must be supported by a transcript of records attached to the original application. Transcripts from any college accredited by the U.S. Department of Education will be accepted without question. With all other institutions, the burden of proof is on the applicant to establish that the formal education satisfies the standards set forth above. The qualifications standards are intended as general guidelines. Individual situations that vary from the standards will continue to be evaluated on their own merits.
(c)(1) Application for admission. An application filed pursuant to this rule under oath for admission to practice shall be submitted between January and May 1 of the year in which the examination is to be taken. The application is to be completed in full on the form provided by the Board, and shall be addressed to the Director, Office of Public Assistance, Governmental Affairs, and Compliance, Surface Transportation Board, Washington, DC 20423-0001, to the attention of the room number indicated on the form.
(2) Certification: All applicants must complete the following certification:
I, _____ (Name) _____, certify under penalty of perjury under the laws of the United States, that I have not been convicted, after September 1, 1989, of any Federal or State offense involving the distribution or possession of a controlled substance, or that if I have been so convicted, I am not ineligible to receive Federal Benefits, either by court order or operation of law, pursuant to 21 U.S.C. 862.
(d) Application fee. Each application filed pursuant to this rule must be accompanied by the non-refundable fee in the amount set forth in 49 CFR 1002.2(f)(99)(i). Payment must be made either by check, money order or credit card payable to the Surface Transportation Board. Cash payment will not be accepted.
(e) Additional certification. (1) When an application meets the required standards, a copy will be referred to the Association of Surface Transportation Board Practitioners for a report to the Board as to the reputation and character of the applicant. Inquiry also will be made by the Board of the sponsors as to their knowledge of the applicant's legal and technical qualifications as contemplated by the Board's Rules of Practice. If the Board is satisfied as to the applicant's qualifications, reputation and character, then applicant will be considered eligible to take the examination.
(2) The Board may require an applicant's sponsors to provide a detailed statement of the nature and extent of their knowledge of applicant's qualifications. Upon consideration of this material, if the Board is not satisfied as to the adequacy of applicant's qualifications, the applicant will be notified by registered mail. Applicant may then request a hearing to prove his qualifications. If applicant makes such a request, the Board will allow a hearing. In the absence of a request for a hearing within 20 days after receipt of the notice, the application will be considered withdrawn.
(f) Scope of examination. If applicant meets the educational and experience standards, and is found to be of good character, the applicant will be permitted to take the examination. The examination tests the applicant's experience and knowledge of the principal regulations, laws, and economic principles in the field of transportation as well as knowledge of the Board's Rules of Practice and Canons of Ethics.
(g) Time and place of examination. The examination will be conducted once a year on the second Tuesday in July. Notice of the time and place to appear for the examination will be mailed to qualifying applicants approximately 30 days prior to the date of the examination.
(h) Location of examination. Examinations will be conducted at the Board's office in Washington, DC.
(i) Cancellation of examination. If the Board determines that there is an insufficient number of applicants to warrant conducting the examination, the Board will cancel the examination for that year. Notice of the cancellation will be mailed to applicants on or before June 15 and the application fee will be refunded. The Board will conduct the examination the next year following the cancellation of the examination.
(j) Examination results. Results will be released within 90 days after the examination. Individual results will be forwarded to the applicants at least 1 week before being publicly released. To protect the privacy of those taking the examination, individual grades will not be released over the telephone to anyone. Requests for grades may, however, be submitted in writing to the Office of Public Assistance, Governmental Affairs, and Compliance to the attention of the address stated in the application form.
(k) Failure to appear for examination. Applicants who have failed to appear for, or postponed taking an examination, a total of three times without showing good cause will have any subsequently filed application returned.
(l) Failing or postponing the examination. Applicants who fail the examination may reapply by submitting a request in writing with an additional filing fee in the amount set forth in 49 CFR 1002.2(f)(99)(i). Applicants who postpone taking the examination three times without showing good cause will have their applications returned.
(m) The filing fee in the amount set forth in 49 CFR 1002.2(f)(99)(i) is not refundable.
(n) Any application resubmitted to the Board after being returned must be accompanied by a filing fee in the amount set forth in 49 CFR 1002.2(f)(99)(i).
(o) Content and grading of examination. A Board staff member is responsible, under the general supervision of the Vice Chairman, for the examination of non-attorney applicants, the preparation of examination questions, and the grading of examinations. The staff member is appointed by the Chairman, with the approval of the Board. The staff member must be an attorney and must have at least two years of experience with the Board.
(p) Applicant's oath. No applicant shall be admitted to practice before the Board until applicant shall subscribe to an oath or affirmation that applicant will conduct practice uprightly and according to the law, as a practitioner before the Board, and that applicant will support the Constitution of the United States and laws of the United States and will conform to the rules and regulations of the Board.
§ 1103.4   Initial appearances.
Practitioners shall file a declaration that they are authorized to represent the particular party on whose behalf they appear at the time of making an initial appearance, in all proceedings. This requirement can be met by:
(a) Entering the practitioner's name as the representative of an applicant in the appropriate space on an application form;
(b) Signing any complaint, petition, protest, reply or other pleading with a designation following the practitioner's signature that he is the representative of a party;
(c) Entering an appearance at any hearing on the form provided; or
(d) Filing a letter with the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board stating that practitioner is authorized to represent a party. The party represented, their address, and the docket number of the proceeding must also be identified at the time of the initial appearance.
§ 1103.5   Discipline.
(a) A member of the Board's bar may be subject to suspension, disbarment, or other disciplinary action if it is shown that the practitioner:
(1) Has been suspended or disbarred from practice in any court of record;
(2) Violated any of the Board's rules including the Canons of Ethics set out in §§ 1103.10 through 1103.35; or
(3) Engaged in conduct unbecoming a member of the bar of the Board.
(b) The practitioner will be afforded an opportunity to show why he should not be suspended, disbarred, or otherwise disciplined. Upon the practitioner's timely response to the show cause order after any requested hearing, or upon failure to make a timely response to the show cause order, the Board shall issue an appropriate decision.
§ 1103.10   Introduction.
The following canons of ethics are adopted as a general guide for those admitted to practice before the Surface Transportation Board. The practitioners before the Board include (a) lawyers, who have been regularly admitted to practice law and (b) others who have fulfilled the requirements set forth in § 1103.3. The former are bound by a broad code of ethics and unwritten rules of professional conduct which apply to every activity of a lawyer. The canons do not release the lawyer from any of the duties or principles of professional conduct by which lawyers are bound. They apply similarly to all practitioners before the Board, but do not negate the applicability of other ethical codes. The canons are organized under three headings, The Practitioner's Duties and Responsibilities to the Board, The Practitioner's Duties and Responsibilities to the Client, The Practitioner's Duties and Responsibilities to Other Litigants, Witnesses and the Public.
§ 1103.11   Standards of ethical conduct in courts of the United States to be observed.
These canons further the purpose of the Board's Rules of Practice which direct all persons appearing in proceedings before it to conform, as nearly as possible, to the standards of ethical conduct required of practice before the courts of the United States. Such standards are taken as the basis for these specifications and are modified as the nature of the practice before the Board requires.
§ 1103.12   The practitioner's duty to and attitude toward the Board.
(a) It is the duty of the practitioner to maintain a respectful attitude toward the Board and for the importance of the functions it administers. In many respects the Board functions as a Court, and practitioners should regard themselves as officers of that Court and uphold its honor and dignity.
(b) It is the right and duty of the practitioner to submit grievances about a member or employee of the Board to the proper authorities when proper grounds for complaint exists. In such cases, charges should be encouraged and the person making them should be protected.
(c) It is the duty of the practitioner to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.
§ 1103.13   Attempts to exert political or personal influence on the Board are prohibited.
(a) It is unethical for a practitioner to attempt to influence the judgment of the Board by threats of political or personal reprisal.
(b) Marked attention and unusual hospitality on the part of a practitioner to a Board Member, administrative law judge, or other representative of the Board, which is unwarranted by the personal relationship of the parties, is subject to misconstruction of motive and should be avoided.
§ 1103.14   Private communications with the Board are prohibited.
To the extent that the Board acts in a quasi-judicial capacity, it is improper for litigants, directly or through any counsel or representative, to communicate privately with a Board Member, administrative law judge, or other representative of the Board about a pending case, or to argue privately the merits thereof in the absence of the adversaries or without notice to them. Practitioners at all times shall scrupulously refrain from going beyond ex parte representations which are clearly proper in view of the administrative work of the Board in their communication with the Board and its staff.
§ 1103.15   The practitioner's duty to clients, generally.
The practitioner shall be respectful of the law and its official ministers, and shall not be involved in corruption of public officials or deception of the public. In giving improper service or advice, the practitioner invites and deserves stern condemnation. The practitioner shall observe and advise all clients to observe the statutory law to the best of his knowledge or as interpreted by competent adjudication. The practitioner owes a general duty to practice candor toward his client with respect to all aspects to his service to the client.
§ 1103.16   Adverse influences and conflicting interests.
(a) At the time of the retainer, the practitioner shall disclose to the client all circumstances of his relations to the parties, and any interest in or connection with the case.
(b) It is unethical for a practitioner to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this section, a practitioner represents conflicting interest, when on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
(c) The obligation to represent the client with undivided fidelity and not to divulge secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
§ 1103.17   Joint association of practitioners and conflicts of opinion.
(a) A client's offer of the assistance of an additional practitioner should not be regarded as evidence of lack of confidence, but the matter should be left to the determination of the client. A practitioner shall decline association as colleague if it is objectionable to the practitioner first retained, but if the client should relieve the practitioner first retained, another may come into the case.
(b) When practitioners jointly associated in a case cannot agree as to any matter vital to the interest of the client the conflict of opinion should be frankly stated to the client for final determination. The client's decision should be accepted by them unless the nature of the difference makes it impracticable for the practitioner whose judgment has been overruled to cooperate effectively. In that event, it is the practitioner's duty to ask the client to relieve him of his obligation.
(c) It is the right of any practitioner to give proper advice to those seeking relief against an unfaithful or neglectful practitioner. The practitioner against whom the complaint is made should be notified of such action.
§ 1103.18   Withdrawal from employment.
The right of a practitioner to withdraw from employment, once begun, arises only from good cause. The desire or consent of the client is not always sufficient cause for withdrawal. The practitioner shall not abandon the unfinished task to the detriment of the client except for reasons of honor, or the client's persistence over the practitioner's remonstrance in presenting frivolous defenses, or the client's deliberate disregard of an obligation as to fees or expenses. In these cases, the practitioner may be warranted in withdrawing after due notice to the client with time allowed for the employment of another practitioner. Other reasons for withdrawal might include instances in which a practitioner discovers that his client has no cause and the client is determined to continue the cause, or the practitioner's own inability to conduct a case effectively. Upon withdrawing from a case, the practitioner shall refund any part of a retainer which clearly has not been earned.
§ 1103.19   Advising upon the merits of a client's cause.
A practitioner shall try to obtain full knowledge of his client's cause before advising thereon. The practitioner shall give a candid opinion of the merits and probable result of bringing the case or of any related pending or contemplated litigation. The practitioner shall beware of bold and confident assurances to clients, especially where employment may depend upon such assurances. Whenever a fair settlement can be reached, the client shall be advised to avoid or to end litigation.
§ 1103.20   Practitioner's fees and related practices.
(a) Establishing fees. In establishing fees, a practitioner shall avoid charges which overestimate the value of his advice and services. A client's ability to pay cannot justify a charge in excess of the value of the service although a client's poverty may require a lesser charge or even no charge at all. Publicly quoted fees should be adhered to when actual charges are made. Practitioners are bound to charge no more than the quoted rates for 30 days following the date of their quotations unless a different period of time for the effectiveness of such rates is clearly specified when quoted, or unless permission to charge a higher rate is obtained from the Vice Chairman of the Board.
(b) Compensation, commission, and rebates. A practitioner shall accept no compensation, commission, rebates, or other advantages from the parties in a proceeding other than his client without the knowledge and consent of his client after full disclosure.
(c) Contingent fees. Contingent fees should be only those sanctioned by law. In no case, except a charity case, should fees be entirely contingent upon success.
(d) Division of fees. Fees for services should be divided only with another member of the bar of practitioners and should be based upon a division of service or responsibility. It is unethical for a practitioner to retain laymen to solicit his employment in pending or prospective cases, and to reward them by a share of the fees. Such a practice cannot be too severely condemned.
(e) Suing clients for fees. Controversies with clients concerning compensation are to be entered into only insofar as they are compatible with self-respect and with the right to receive reasonable compensation for services. Lawsuits against clients should be resorted to only to prevent injustice, imposition or fraud.
(f) Acquiring interest in litigation. The practitioner shall not purchase or otherwise acquire any pecuniary interest in the subject matter of litigation which the practitioner is conducting.
(g) Expenses. A practitioner may not properly agree with a client that the practitioner shall pay or bear the expenses of litigation. He may in good faith advance expenses as a matter of convenience but must do so subject to reimbursement by the client. A practitioner shall bill and collect from a client, and thereafter retain only such payments and reimbursements for expenses as have actually been incurred on behalf of the client.
(h) Witnesses' compensation. Compensation of a witness is not to be made contingent on the success of a case in which the witness is called.
(i) Dealing with trust property. Money of the client or other trust property coming into the possession of the practitioner should be reported promptly, and, except with the client's knowledge and consent, should not be commingled with the practitioner's private property or be put to the practitioner's private use.
§ 1103.21   How far a practitioner may go in supporting a client's cause.
A practitioner shall put forth his best effort to maintain and defend the rights of his client. Fear of disfavor of the Board or public unpopularity should not cause a practitioner to refrain from the full discharge of his duty. The client is entitled to the benefit of any and every remedy and defense authorized by law. The client may expect his counsel to assert every such remedy or defense. However, the practitioner shall act within the bounds of the law. A practitioner shall not violate the law or be involved in any manner of fraud or chicanery for any client.
§ 1103.22   Restraining clients from improprieties.
A practitioner should see that his clients act with the same restraint that the practitioner himself uses, particularly with reference to the client's conduct toward the Board, fellow practitioners, witnesses and other litigants. If a client persists in improper conduct, the practitioner should terminate their relationship.
§ 1103.23   Confidences of a client.
(a) The practitioner's duty to preserve his client's confidence outlasts the practitioner's employment by the client, and this duty extends to the practitioner's employees as well. Neither practitioner nor his employees shall accept employment which involves the disclosure or use of a client's confidences without knowledge and consent of the client even though there are other available sources of information. A practitioner shall not continue employment when he discovers that this obligation presents a conflict in his duty between the former and the new client.
(b) If a practitioner is falsely accused by his client, he is not precluded from disclosing the truth in respect to the false accusation. The announced intention of a client to commit a crime is not included in the confidence which a practitioner is bound to respect. The practitioner may properly make such disclosures to prevent the act or protect those against whom that is threatened.
§ 1103.24   Use of adverse witnesses.
A practitioner shall not be deterred from seeking information from a witness connected with or reputed to be biased in favor of an adverse party, if the ascertainment of the truth requires that such a person be called as a witness in a proceeding.
§ 1103.25   Treatment of witnesses, litigants and other counsel.
(a) A practitioner shall always treat adverse witnesses and other litigants with fairness and due consideration. He should never minister to the prejudice of a client in a trial or conduct in a cause. The client has no right to demand that the practitioner representing him abuse the opposing party or indulge in offensive personal attacks.
(b) A practitioner shall not attempt to obstruct Board investigations or corruptly to influence witnesses and potential witnesses during an investigation.
(c) In conducting a case it is improper for a practitioner to allude to the personal history or the personal peculiarities or idiosyncracies of practitioners on the other side, or otherwise engage in personal abuse of other practitioners.
§ 1103.26   Discussion of pending litigation in the public press.
Attempts to influence the action and attitude of the members and administrative law judges of the Board through propaganda or through colored or distorted articles in the public press, should be avoided. However, it is not against the public interest or unfair to the Board if the facts of pending litigation are made known to the public through the press in a fair and unbiased manner and in dispassionate terms. When the circumstances of a particular case appear to justify a statement to the public through the press, it is unethical to make it anonymously.
§ 1103.27   Candor and fairness in dealing with other litigants.
(a) The conduct of practitioners before the Board and with other practitioners should be characterized by candor and fairness. The practitioner shall observe scrupulously the principles of fair dealing and just consideration for the rights of others.
(b) It is not candid or fair for a practitioner knowingly to misstate or misquote the contents of a paper, the testimony of a witness, the language or the argument of an opposing practitioner, or the language or effect of a decision or a text book; or, with knowledge of its invalidity to cite as authority a decision which has been overruled or otherwise impaired as a precedent or a statute which has been repealed; or in argument to assert as a fact that which has not been proved, or to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely.
(c) It is dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of cases.
(d) A practitioner shall not offer evidence which he knows the Board should reject, in order to get the same before the Board by argument for its admissibility, or arguments upon any point not properly calling for determination. He shall not introduce into an argument remarks or statements intended to influence the bystanders.
(e) A practitioner shall rely on his judgment concerning matters incidental to the trial which may, in some cases, affect the proceeding. For example, a practitioner should not force a matter to trial when there is affliction or bereavement on the part of the opposing practitioner if no harm will come from postponing the proceeding.
(f) A practitioner shall not ignore known customs or practice of the Board, even when the law permits, without giving timely notice to the opposing practitioner.
(g) Insofar as is possible, important agreements affecting the rights of the clients should be made in writing. It is, however, dishonorable to avoid performance of an agreement fairly made only because it is not made in writing.
§ 1103.28   Negotiations with opposing party.
A practitioner shall not in any way communicate upon the subject of controversy with a party represented by another practitioner except upon express agreement with the practitioner representing such party. He shall not negotiate or make compromises with the other party, but shall deal only with the opposing practitioner. The practitioner shall avoid everything that may tend to mislead a party not represented by a practitioner and should not advise that party as to the law.
§ 1103.29   Public communication and solicitation.
(a) A practitioner shall not make any public communication or solicitation for employment containing a false, fraudulent, misleading, or deceptive statement or claim. This prohibition includes, but is not limited to:
(1) The use of statements containing a material misrepresentation of fact or omission of a material fact necessary to keep the statement from being misleading;
(2) Statements intended or likely to create an unjustifiable expectation; statements of fee information which are not complete and accurate;
(3) Statements containing information on past performance or prediction of future success;
(4) Statements of prior Board employment outside the context of biographical information; statements containing a testimonial about or endorsement of a practitioner;
(5) Statements containing an opinion as to the quality of a practitioner's services, or statements intended or likely to attract clients by the use of showmanship, puffery, or self-laudation, including the use of slogans, jingles, or sensational language or format.
(b) A practitioner shall not solicit a potential client who has given the practitioner adequate notice that he does not want to receive communications from the practitioner, nor shall a practitioner make a solicitation which involves the use of undue influence.
(c) A practitioner shall not solicit a potential client who is apparently in a physical or mental condition which would make it unlikely that he could exercise reasonable, considered judgment as to the selection of a practitioner.
(d) A practitioner shall not pay or otherwise assist any other person who is not also a practitioner and a member or associate of the same firm to solicit employment for the practitioner.
(e) If a public communication is to be made through use of radio or television, it must be prerecorded and approved for broadcast by the practitioner. A recording of the actual transmission must be retained by the practitioner for a period of 1 year after the date of the final transmission.
(f) A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement.
(g) A practitioner shall not compensate or give anything of value to a representative of any communication medium in anticipation of or in return for professional publicity in a news item.
§ 1103.30   Acceptance of employment.
(a) The practitioner must decline to conduct a case or to make a defense when convinced that it is intended merely to harass or to injure the opposing party, or to work oppression or wrong. Otherwise, it is the practitioner's right, and having accepted retainer, it becomes the practitioner's duty, to insist upon the judgment of the Board as to the merits of the client's claim. The practitioner's acceptance of a case is equivalent to the assertion that the client's case is proper for determination.
(b) No practitioner is obliged to act either as adviser or advocate for every potential client. The practitioner has the right to decline employment. Every practitioner shall decide what employment he will accept, what cases he will bring before the Board for complainants, or contest for defendants or respondents.
§ 1103.31   Responsibility for litigation.
The practitioner bears the responsibility for advising as to questionable transactions, bringing questionable proceedings, or urging questionable defenses. Client's instructions cannot be used as an excuse for questionable practices.
§ 1103.32   Discovery of imposition and deception and duty to report corrupt or dishonest conduct.
(a) The practitioner, upon detecting fraud or deception practiced against the Board or a party in a case, shall make every effort to rectify the practice by advising his client to forgo any unjustly earned advantage. If such advice is refused, the practitioner should inform the injured party or that party's practitioner so that appropriate steps may be taken.
(b) Practitioners shall expose without fear or favor before the proper tribunals any corrupt or dishonest conduct and should accept without hesitation employment against a practitioner who has wronged his client. The practitioner upon the trial of a case in which perjury has been committed owes it to the Board and to the public to bring the matter to the knowledge of the prosecuting authorities.
§ 1103.33   Responsibility when proposing a person for admission to practice before the Board.
The practitioner shall aid in guarding the bar of the Board against admission of candidates unfit or unqualified because deficient in either moral character or qualification. A practitioner shall propose no person for admission to practice before the Board unless from personal knowledge or after reasonable inquiry he sincerely believes and is able to vouch that such person possesses the qualifications prescribed in § 1103.3.
§ 1103.34   Intermediaries.
(a) The services of a practitioner should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and practitioner. The responsibility and qualifications of the practitioner are individual. The practitioner shall avoid all relations which direct the performance of his duties in the interest of such intermediaries. The practitioner's relationship and responsibility to the client should be direct.
(b) The practitioner may accept employment from any organization (such as an association, club or trade organization) authorized by law to be a party to proceedings before the Board, to render services in such proceedings in any matter in which the organization, as an entity, is interested. This employment should only include the rendering of such services to the members of the organization in respect to the individual affairs as are consistent with the free and faithful performance of his duties to the Board.
(c) Nothing in this canon shall be construed as conflicting with § 1103.20(d).
§ 1103.35   Partnership or professional corporation names and titles.
In the formation of a partnership or professional corporation among practitioners care should be taken to avoid any misleading name or representation which would create a false impression as to the position or privileges of a member not duly authorized to practice. No person should be held as a practitioner who is not duly qualified under § 1103.2 or § 1103.3 of these rules. No person who is not duly admitted to practice should be held out in a way which will give the impression that he is so admitted. No false or assumed or trade name should be used to disguise the practitioner or his partnership or professional corporation.